Durable and Springing Power of Attorney


Contemplating a debilitating illness or injury is unpleasant, but by planning ahead, you can take some of the burden off your loved ones should tragedy strike. By creating a power of attorney before you need it, you make sure your wishes are known should you become disabled.

A power of attorney is a legal document through which you choose a representative to manage your medical care and financial dealings in the event of your temporary or permanent disability. The individual who acts on your behalf is known as your “attorney in fact” or “agent.”

What Is Durable Power of Attorney?

If you suffer mental incapacitation at some point in your life, you can benefit from having a “durable” power of attorney in place for handling your medical and financial decisions. A durable power of attorney becomes effective as soon as you sign it, and it continues indefinitely if you become unable to handle your own affairs due to incapacitation. A nondurable power of attorney, on the other hand, ends automatically if the individual who put the power of attorney in place becomes incapacitated.

A legally executed durable power of attorney enables your designated representative — who should be someone you trust — to handle all of your important affairs, such as overseeing your investments, paying bills or making medical decisions for you if you cannot do so on your own.

If you become incapacitated without a valid power of attorney document in place, your family members may have a difficult time getting authority to manage your affairs — and securing authority may require going to court to obtain a guardianship and or conservatorship.  To provide for oversight of all your personal affairs, you should have two documents in place: a medical power of attorney and a financial power of attorney.

A medical power of attorney, sometimes referred to as a durable power of attorney for health care, or patient advocate agreement, names a trusted surrogate who makes your medical decisions should you lose the ability to do so.

With a financial power of attorney, your designated representative has authority to oversee your financial matters. In some cases, a financial power of attorney can be used for a short time or for only one transaction, such as finalizing a real estate deal. A durable financial power of attorney, though, allows an individual you name to handle your financial affairs indefinitely in the event of your incapacitation.

Michigan Requirements for Durable Powers of Attorney

In Michigan, both financial and medical durable powers of attorney are recognized under state law. In both cases, the designated representative — referred to as an advocate for medical purposes and an agent for financial purposes — can participate in actions on behalf of the creator of the power of attorney.

Financial powers of attorney typically are durable unless the document explicitly states an end date. Medical powers of attorney go into effect when the creator of the document becomes incapacitated.

An individual wishing to create a legal power of attorney document in Michigan must be at least 18 years old and must be mentally competent. A qualified estate planning attorney can assist you with preparing the documents to ensure that you meet all state requirements.

What Is Springing Power of Attorney?

A springing power of attorney — as opposed to a durable power of attorney — takes effect only when the creator of the document becomes incompetent. Either a court or a doctor can declare that individuals are no longer able to manage their own finances. A representative named in a springing power of attorney has no legal right to manage the document creator’s finances until that individual is officially deemed mentally incapacitated.

Create Separate Documents

To keep your affairs as simple as possible and to meet state law requirements, separate documents for financial and medical powers of attorney are best. While it is possible to combine the two, separation into two documents provides several advantages. For instance, your medical records may include personal information that you want to keep private from financial professionals, and medical professionals treating you do not need to know the details of your finances.

If you decide to create two separate powers of attorney, however, you may want the same individual representing you for both areas. If you want different representatives for medical and financial matters, make sure that the two individuals can work together effectively. For a consultation with an experienced estate planning attorney, please contact Gold & Associates, P.C.

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